S.I. No. 198/1992 - European Communities (Construction Products) Regulations, 1992.

S.I. No. 198 of 1992.

EUROPEAN COMMUNITIES (CONSTRUCTION PRODUCTS) REGULATIONS, 1992.

Article

1. Citation and Commencement.

2. Interpretation.

3. Products to enable works to satisfy essential requirements.

4. Products bearing the EC mark.

5. Information about products bearing the EC mark.

6. False or misleading marks.

7. Products which do not bear the EC mark.

8. Appointment of authorised officers.

9. Prohibitions.

10. Powers of authorised officers.

11. Warrant to enter and search.

12. Service of notices.

13. Offences.

14. Rules of certain bodies.

15. Defences.

16. Penalties.

17. Prosecutions.

18. Forfeiture etc.

S.I. No. 198 of 1992.

EUROPEAN COMMUNITIES (CONSTRUCTION PRODUCTS) REGULATIONS, 1992.

The Minister for the Environment, in exercise of the powers conferred on him by section 3 of the European Communities Act, 1972 (No. 27 of 1972) and for the purpose of giving effect to Council Directive 89/106/EEC of 21 December, 1988(*) on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, hereby makes the following Regulations:—

1 Citation and Commencement.

1. (1) These Regulations may be cited as the European Communities (Construction Products) Regulations, 1992.

(2) These Regulations shall come into operation on the 1st day of January, 1993.

2 Interpretation.

2. (1) In these Regulations—

"acknowledged rule of technology" means technical provision acknowledged by a majority of representative experts as reflecting the developed stage of technical capability at a given time as regards products, processes and services;

"approved body" means a certification body, an inspection body or a testing laboratory designated by a Member State to carry out tasks for the purposes of technical approvals, certification of conformity, inspections and tests and which has been notified by that Member State to the Commission;

"authorised officer" means a person appointed in accordance with article 8 to be an authorised officer for the purposes of these Regulations;

"building control authority" means a local authority to which section 2 of the Building Control Act, 1990 (No. 3 of 1990) applies;

"Building Regulations Advisory Body" means a body appointed by the Minister in accordance with section 14 of the Building Control Act, 1990 (No. 3 of 1990);

(*) O.J. No. L40, 11.2.89, p .12.

"the Commission" means the Commission of the European Communities;

"the Community" means the European Economic Community;

"the Directive" means Council Directive 89/106/EEC of 21 December, 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products and published in the Official Journal (No. L40 Volume 32) of the European Communities of 11 February, 1989;

"EC certificate of conformity" means a certificate issued by an approved body in accordance with the provisions of paragraphs 1 to 3 of Annex II to the Schedule or under the terms of the Directive as implemented under the law of another Member State;

"EC declaration of conformity" means a declaration of conformity made in accordance with the provisions of paragraphs 4 and 5 of Annex II to the Schedule or under the terms of the Directive as implemented under the law of another Member State;

"EC mark" means the EC mark of conformity consisting of the symbol "CE", a specimen form of which is set out in paragraph 6 of Annex II to the Schedule;

"essential requirements" means the essential requirements specified in Annex I to the Schedule and to elaborations thereof as may be issued as interpretative documents and published in the 'C' series of the Official Journal of the European Communities;

"European technical approval" means an approval issued for the purposes of the Directive by a body authorised by a Member State for that purpose, and notified by that Member State to the Commission, following a favourable technical assessment by that body of the fitness for use of a product for an intended use;

"European technical specification" means a European technical approval or a national standard which transposes a harmonised standard, the reference of which has been published in the 'C' series of the Official Journal of the European Communities;

"factory production control" means the permanent internal control of production exercised by a manufacturer including the documenting of all the elements, requirements and provisions adopted by the manufacturer in a systematic manner in the form of written policies and procedures so as to—

( a ) ensure a common understanding of quality assurance, and

( b ) enable the achievement of the required product characteristics and the effective operation of the production control system to be checked;

"harmonised standard" means a technical specification established by the European Committee for Standardisation, by the European Committee for Electrotechnical Standardisation, or both, on the basis of mandates given by the Commission;

"Member State" means a Member State of the European Communities;

"the Minister" means the Minister for the Environment;

"minor product" means a product which plays a minor part with respect to health and safety and which is included in a list of such products drawn up, managed and revised from time to time by the Commission;

"national standard" means—

( a ) a standard specification declared in accordance with section 20 of the Industrial Research and Standards Act, 1961 (No. 20 of 1961), or

( b ) a standard declared or laid down by a body or person pursuant to the law of another Member State;

"place on the market" means—

( a ) import,

( b ) sell (whether by wholesale or retail sale),

( c ) offer or expose for sale,

( d ) distribute free of charge, or

( e ) supply for any of those purposes;

"product" means any construction product to which these Regulations apply which is produced for incorporation in a permanent manner in works;

"public body" means a local authority for the purposes of the Local Government Act, 1941 (No. 23 of 1941) and a public authority for the purposes of the Local Government Act, 1991 (No. 11 of 1991) and includes a private body where such body specifies by rules or other requirements the products to be used in any works to which these Regulations apply and, by virtue of occupying a monopoly position, influences and significantly determines the products to be placed on the market;

"recognised national technical specification" means a national standard or other national technical specification—

( a ) which the Commission considers to be such as to benefit from the presumption that the products or processes to which it relates enable the essential requirements to be satisfied, and

( b ) to which the Commission has published a reference in the Official Journal of the European Communities;

"works" means construction works, including both building and civil engineering works.

(2) A reference in these Regulations to an article or to a Schedule is, unless otherwise identified, to an article of or a Schedule to these Regulations.

(3) A reference in these Regulations to a paragraph or sub-paragraph is, unless otherwise identified, to that paragraph or sub-paragraph of the article in which the reference occurs.

(4) A word or expression which is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

3 Products to enable works to satisfy essential requirements.

3. (1) A person shall not place a product, other than a minor product, on the market unless it has such characteristics that the works in which it is to be incorporated, assembled, applied or installed can, if properly designed and built, satisfy the essential requirements when, where and to the extent that such works are subject to regulations containing such requirements.

(2) "Regulations" in paragraph (1) includes the Building Regulations, 1991 ( S.I. No. 306 of 1991 ), bye-laws or other regulations which have the force of law.

(3) A minor product in respect of which the manufacturer has issued a declaration of compliance with the acknowledged rule of technology may be placed on the market.

4 Products bearing the EC mark.

4. (1) The EC mark may be affixed to a product which is not a minor product by the manufacturer or his agent established in the Community, if—

( a ) (i) the product has been manufactured in conformity with the European technical specification applicable to it, and

(ii) the relevant attestation procedure specified by the Commission for that product and indicated in the European technical specification or in the publication thereof has been followed, and

(iii) an EC certificate of conformity or an EC declaration of conformity, as may be appropriate, has been issued or made in respect of the product;

( b ) in as much as a European technical specification has not been established for the product, the product has been manufactured in conformity with a recognised national technical specification applicable to it; or,

( c ) the product (being a product to which the attestation procedures described in the second and third possibilities set out in paragraph 2 of Annex II to the Schedule are applicable) has not been manufactured, or has been manufactured only partly, in conformity with the European technical specification or the recognised national technical specification applicable to it, but the manufacturer or his agent established in the Community has made an EC declaration of conformity on the basis of initial type-testing of the product by an approved body and the exercise of factory production control.

(2) A product which bears the EC mark shall be presumed, until the contrary is proved, to comply with the requirements of article 3 for placing the product on the market, and with the provisions of any other Community directive applicable to the product.

(3) The manufacturer or his agent established in the Community shall be responsible for affixing the EC mark and for ensuring that the relevant attestation procedure provided for in paragraph (1) has been followed.

(4) For the purposes of paragraph (1) the EC mark may be affixed to the product itself, to a label attached to it, to its packaging or to any accompanying commercial documents relating to the product.

(5) The EC mark shall conform to the specimen set out in paragraph 6 of Annex II to the Schedule and shall be accompanied by the name or identifying mark of the manufacturer of the product and, where appropriate—

( a ) indications to identify the characteristics of the product by reference to the relevant European technical specifications or recognised national technical specifications where appropriate;

( b ) the last two digits of the year of manufacture;

( c ) the identification symbol of the approved body involved;

( d ) the number of the EC certificate of conformity.

(6) The EC mark may not be affixed to a minor product.

5 Information about products bearing the EC mark.

5. A person who affixes the EC mark to a product or who imports a product which bears the EC mark shall keep available for inspection by an authorised officer the EC certificate of conformity or the EC declaration of conformity relating to the product or a copy thereof.

6 False or misleading marks.

6. (1) A person shall not—

( a ) affix the EC mark to a product otherwise than in accordance with article 4 (1), or

( b ) affix to a product any mark which is likely to be confused with the EC mark.

(2) Where it is established that the EC mark has been affixed to a product which does not satisfy or no longer satisfies the requirements of these Regulations in relation to the mark, the manufacturer or his agent established in the Community shall, pursuant to a direction under article 9, withdraw all unsold products or obliterate all EC marks until such time as the product concerned satisfies those requirements.

7 Products which do not bear the EC mark.

7. A person who places on the market a product which does not bear the EC mark shall, on request, give to an authorised officer all the information he may reasonably require for the purposes of establishing whether the product satisfies the requirements of article 3.

8 Appointment of authorised officers.

8. (1) The Minister or a building control authority may appoint officers to be authorised officers for the purposes of these Regulations.

(2) An authorised officer shall be furnished with a warrant of his appointment as an authorised officer and, when exercising any power conferred on an authorised officer by these Regulations, shall, if requested by any person affected, produce the warrant to that person.

9 Prohibitions.

9. (1) Where a building control authority is of the opinion that a person is placing or has placed a product on the market in contravention of article 3, the authority shall notify the said person—

( a ) that it intends, after the expiry of the period of one month commencing on the date of notification, to request the Minister to issue a direction in writing under paragraph (3),

( b ) of the terms of the direction it intends to request the Minister to make, and

( c ) that it will consider any representations on the matter made within the period specified in sub-paragraph (a).

(2) After considering any representations made pursuant to paragraph (1), a building control authority may request the Minister to prohibit the placing on the market of the product in question or to prohibit the use of the product or make its use subject to special conditions and shall forward to the Minister the reasons for its request, any representations received and the comments of the authority thereon.

(3) ( a ) Where the Minister is of the opinion, after consideration of—

(i) a communication from the Commission or another Member State that a product has been withdrawn from the market, or

(ii) evidence of an imminent danger to health and safety arising from the use, or likely to arise from a prospective use, of a product, or

(iii) a request from a building control authority pursuant to paragraph (2),

that a product does not satisfy the requirements of article 3, or

( b ) where, as respects a product for which no European technical specification or recognised national technical specification exists, the Minister, after consultation with the Member State concerned, considers that an approved body in that Member State is not carrying out tests and inspections properly or in accordance with the procedures applicable to such tests and inspections in Ireland

he may, by direction in writing, prohibit the product from being placed on the market or prohibit the use of the product or make its use subject to special conditions and the manufacturer or his agent established in the Community shall comply with the Minister's direction and, where appropriate, withdraw the product from the market.

(4) A direction under paragraph (3) may, as appropriate, be stated to apply to products representative of the product (whether it is of the same design, part of the same consignment or batch or otherwise) which is the subject of the direction.

(5) Where a direction is given under paragraph (3), the Minister shall cause a public notice of the prohibition or restriction of use to be published in at least one national daily newspaper.

(6) The Minister may, if he thinks fit, consult the Building Regulations Advisory Body or any other person or body before giving a direction under paragraph (3).

(7) The Minister may withdraw a direction given under paragraph (3) where he considers that the prohibition or restriction of use is no longer justified.

(8) An authorised officer may require the person to whom a direction is given under paragraph (3) to furnish any information to establish the whereabouts of any product or products subject to the direction.

(9) Any person who is affected by a direction given under paragraph (3) may appeal to the High Court against the direction and the Court, as it thinks proper, may annul, vary or confirm the direction.

(10) A document purporting to be a direction given by the Minister under paragraph (3) and so signed by the Minister shall be received in evidence and deemed to be such a direction without further proof, unless the contrary is shown.

10 Powers of authorised officers.

10. (1) An authorised officer shall, on request, obtain access to—

( a ) the place of manufacture or storage of any product and to the documentation or information referred to in articles 5 and 7,

( b ) any ship or other vessel, aircraft, railway wagon or other vehicle in which he has reasonable grounds for believing that a product is being transported for placing on the market,

and there, or at any other place, make such examination, tests or inspections as he may consider appropriate for the purposes of these Regulations.

(2) An authorised officer—

( a ) may request the manufacturer of a product or his agent established in the Community or the person who placed the product on the market to supply the documentation or information referred to in articles 5 and 7 within such period of time as may be specified by an authorised officer,

( b ) may select a sample of the product and take it away for examination and testing, and

( c ) shall take reasonable measures to guarantee the confidentiality of information or documentation supplied to him under this article.

(3) Where the documentation or information required to be kept available under articles 5 and 7 is not available, an authorised officer may require that the manufacturer of the product or his agent established in the Community or the person who placed the product on the market shall have a test performed by an approved body within such period of time as may be specified by the authorised officer to verify compliance with the requirements of article 3.

(4) The costs incurred in, or in connection with, a test under paragraph (3) shall be borne by the person required by the authorised officer to have the test performed.

11 Warrant to enter and search.

11. (1) If a Justice of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that an offence under these Regulations has been or is being committed on any premises or other place, he may issue a warrant under his hand authorising a specified authorised officer, accompanied by such members of the Garda Síochána as that officer thinks necessary, at any time or times within one month from the date of the issue of the warrant, to enter, if need be by force, and search the premises or other place specified in the warrant and—

( a ) to seize any product found there which in his opinion could not, without contravening these Regulations, be placed on the market, and

( b ) to require any person found there to give him his name and address and any other information in his possession in relation to any product referred to in sub-paragraph (a).

(2) An application under paragraph (1) for the issue of a warrant shall be made to a Justice of the District Court district in which the premises or place to which the application relates is situated.

12 Service of notices.

12. (1) Where a direction, document, notice, product or other matter is required by these Regulations to be sent or given to a person it shall be addressed to him and may be sent or given to him in some one of the following ways—

( a ) where it is addressed to him by name, by delivering it to him, or

( b ) by leaving it at the address at which he carries on business or ordinarily resides, or

( c ) by sending it by post in a prepaid registered letter or package addressed to him at the address at which he carries on business or ordinarily resides.

(2) For the purposes of paragraph (1), a company within the meaning of the Companies Acts, 1963 to 1990 shall be deemed to be ordinarily resident at its registered office and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or any other place at which it carries on business.

13 Offences.

13. (1) It shall be an offence for a person—

( a ) to contravene, or fail to comply with, the terms of a written direction given under article 9,

( b ) to interfere with an authorised officer in the exercise of his duties under article 10,

( c ) to refuse to comply with a request or a requirement of an authorised officer under article 10,

( d ) to disclose or use for business or commercial purposes or any other purpose (other than in connection with the prosecution of an offence under these Regulations) any information relating to a product in the possession of an approved body, or a body authorised to issue European technical approvals, in discharge of its functions under these Regulations without the written consent of that body,

( e ) to obstruct or interfere with an authorised officer or member of the Garda Síochána in the exercise of his powers under article 11 or to refuse to give information required under sub-paragraph (b) of article 11 (1), or

( f ) to contravene in any way any provision or requirement of, or under, articles 3, 4, 5, 6, 7 or 14.

(2) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other officer of the body corporate, the director, manager, secretary or other officer or any person purporting to act in such capacity shall also be guilty of an offence.

14 Rules of certain bodies.

14. It shall be unlawful for a public body to make, impose or enforce any rules or conditions relating to matters covered by the essential requirements which would have the effect of impeding the use, for the purpose for which it was intended, of any product which satisfies the requirements of article 3.

15 Defences.

15. In criminal proceedings against any person for contravening articles 3 or 6 or for failing to comply with the terms of a written direction under article 9 it shall be a defence for the person (not being the manufacturer or agent established in the Community who first placed the product on the market) to show that he took all reasonable steps and exercised all due diligence to avoid any such contravention or failure to comply.

16 Penalties.

16. (1) A person guilty of an offence under these Regulations shall be liable, on summary conviction, to imprisonment for a period not exceeding six months or to a fine not exceeding £1,000 or to both such imprisonment and fine.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under these Regulations may be instituted at any time within one year from the date on which the offence was committed.

17 Prosecutions.

17. An offence under these Regulations may be prosecuted by a building control authority.

18 Forfeiture etc.

18. (1) Where a person is convicted of an offence under these Regulations, the court by which he is convicted may order any product in respect of which the offence was committed to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

(2) An order under this article shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

SCHEDULE

ANNEX I

ESSENTIAL REQUIREMENTS

The products must be suitable for construction works which (as a whole and in their separate parts) are fit for their intended use, account being taken of economy, and in this connection satisfy the following essential requirements where the works are subject to regulations containing such requirements. Such requirements must, subject to normal maintenance, be satisfied for an economically reasonable working life. The requirements generally concern actions which are foreseeable.

1. Mechanical resistance and stability

The construction works must be designed and built in such a way that the loadings that are liable to act on them during their construction and use will not lead to any of the following:

( a ) collapse of the whole or part of the work;

( b ) major deformations to an inadmissible degree;

( c ) damage to other parts of the works or to fittings or installed equipment as a result of major deformation of the load-bearing construction;

( d ) damage by an event to an extent disproportionate to the original cause.

2. Safety in case of fire

The construction works must be designed and built in such a way that in the event of an outbreak of fire:

— the load-bearing capacity of the construction can be assumed for a specific period of time,

— the generation and spread of fire and smoke within the works is limited,

— the spread of the fire to neighbouring construction works is limited,

— occupants can leave the works or be rescued by other means,

— the safety of rescue teams is taken into consideration.

3. Hygiene, health and the environment

The construction works must be designed and built in such a way that they will not be a threat to the hygiene or health of the occupants or neighbours, in particular as a result of any of the following:

— the giving-off of toxic gas,

— the presence of dangerous particles or gases in the air,

— the emission of dangerous radiation,

— pollution or poisoning of the water or soil,

— faulty elimination of waste water, smoke, solid or liquid wastes,

— the presence of dampness in parts of the works or on surfaces within the works.

4. Safety in use

The construction works must be designed and built in such a way that they do not present unacceptable risks of accidents in service or in operation such as slipping, falling, collision, burns, electrocution or injury from explosion.

5. Protection against noise

The construction works must be designed and built in such a way that noise perceived by the occupants or people nearby is kept down to a level that will not threaten their health and will allow them to sleep, rest and work in satisfactory conditions.

6. Energy economy and heart retention

The construction works and their heating, cooling and ventilation installations must be designed and built in such a way that the amount of energy required in use shall be low, having regard to the climatic conditions of the location and the occupants.

ANNEX II

ATTESTATION OF CONFORMITY WITH TECHNICAL SPECIFICATIONS

EC Certificate of Conformity

1. An EC certificate of conformity may be issued for a system of production control and surveillance or for a product itself.

2. An EC certificate of conformity may be issued by an approved body on the basis of one or more of the following:

(a) (tasks for the manufacturer)

(i) factory production control;

(ii) further testing of samples taken at the factory by the manufacturer in accordance with a prescribed test plan;

(b) (tasks for the approved body)

(iii) initial type-testing of the product;

(iv) initial inspection of factory and of factory production control;

(v) continuous surveillance, assessment and approval of factory production control;

(vi) possibly, audit-testing of samples taken at the factory, on the market or on the construction site.

3. An EC certificate of conformity shall be presented in the official language or languages of the Member State in which the product is to be used and shall contain in particular:

— name and address of the certification body,

— name and address of the manufacturer or his agent established in the Community,

— description of the product (type, identification, use . . .),

— provisions to which the product conforms,

— particular conditions applicable to the use of the product,

— the number of the certificate,

— conditions and period of validity of the certificate, where applicable,

— name of, and position held by, the person empowered to sign the certificate.

EC Declaration of Conformity

4. An EC declaration of conformity for a product may be made by the manufacturer, or his agent established in the Community, on the basis of such one of the following possibilities as is indicated in the relevant technical specification or in the publication of that specification:

First Possibility:

(a) (tasks for the manufacturer)

(i) initial type-testing of the product;

(ii) factory production control;

(iii) possibly, testing of samples taken at the factory in accordance with a prescribed test plan;

(b) (tasks for the approved body)

(iv) certification of factory production control on the basis of:

— initial inspection of factory and of factory production control,

— possibly, continuous surveillance, assessment and approval of factory production control.

Second possibility:

(i) initial type-testing of the product by an approved laboratory;

(ii) factory production control.

Third possibility:

(i) initial type-testing of the product by the manufacturer;

(ii) factory production control.

5. An EC declaration of conformity shall be presented in the official language or languages of the Member State in which the product is to be used and shall contain in particular:

— name and address of the manufacturer or his agent established in the Community,

— description of the product (type, identification, use . . .),

— provision to which the product conforms,

— particular conditions applicable to the use of the product,

— name and address of the approved body, where applicable,

— name of, and position held by, the person empowered to sign the declaration on behalf of the manufacturer or of his authorised representative.

EC Conformity mark

6. The EC conformity mark shall consist of the symbol CE as given below.

GIVEN under the Official Seal of the Minister for the Environment, this 16th

day of July, 1992.

MICHAEL SMITH,

Minister for the Environment.

EXPLANATORY NOTE.

These Regulations implement Council Directive 89/106/EEC of 21, December, 1988 on the approximation of the laws of the Member States concerning construction products. This Directive is one of the internal market Directives and its primary objective is to facilitate the free movement of construction products.

The Regulations establish a system designed to ensure that construction products, other than minor products, will not be placed on the market unless they enable the buildings into which they are to be incorporated to meet the essential requirements laid down in the Directive (these requirements are transposed into Irish law under these Regulations).

The Regulations also provide a mechanism for the use of the EC mark. Products properly bearing this mark will benefit from the presumption that they meet the requirements of the Regulations.

The Regulations will be primarily enforced by those local authorities which are Building Control Authorities, although the Minister has certain powers to regulate the placing of a product on the market. The Regulations establish and prescribe fines for offences and prescribe penalties for breaches of their provisions.